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Use of Pepper Spray by School Police Violated Constitution, Judge Rules

Birmingham, Ala., police officers used unconstitutional excessive force when they sprayed students who were not resisting arrest or posing a threat to others with a mix of pepper spray and tear gas at school, a federal judge ruled Wednesday.

In one of those cases, an officer sprayed a pregnant student who was already restrained with handcuffs. In the other, officers had a 135-pound boy pinned against a wall of lockers.

The judge ruled officers were justified in using the agent, called Freeze+P, in many of the instances described in the 2010 lawsuit when students resisted arrest or posed a physical threat to those around them. But, even in those cases, officers violated the students' constitutional rights when they didn't decontaminate them by cleaning off the chemical with soap and water and exposing them to fresh air, the judge ruled.

Freeze+P is described by its manufacturer as "the most intense incapacitating agent available today." Plaintiffs in the case described intense burning and pain after being sprayed with the substance. One said she "felt like somebody cut up my face and poured hot sauce in." Some said they had welts and swollen eyes for days after exposure.

"While using Freeze +P may be a faster and easier way to subdue a 'loud and boisterous' teenager than other techniques, speed and convenience to the officer are not factors that influence whether an officer's use of force is excessive," U.S. District Court Judge Abdul Kallon wrote in his ruling.

Kallon denied a request by the plaintiffs, all former students, to forbid the use of the chemical in schools until appropriate procedures and training can be put into place. He noted that even the plaintiffs conceded that police can constitutionally use pepper spray on students who are "actively engaged in a physical fight or violent behavior," so he did not believe a full injunction was appropriate.

"Nonetheless, it is clear that the current system is flawed," Kallon wrote. "At a minimum, better training reflecting the unique character and challenges of school-based policing is needed for [school resource officers.] As part of this training, Chief Roper needs to remind S.R.O.s that enforcement of school discipline is not part of their job description and that Freeze +P is not suited for general crowd control."

He ordered police and officials from the Southern Poverty Law Center, which represented students in the case, to meet by November to create a training plan for school-based officers, and to create decontamination procedures for students.

The Southern Poverty Law Center lauded the ruling as a victory for those concerned about harsh police involvement in routine school-based discipline.

"This is great a victory for students and their families in Birmingham, and it sends a strong message to school officials across the country that it's time to stop treating schoolchildren like they're criminals," Ebony Howard, the SPLC's lead attorney in the case, said in a statement. "The judge recognized that this is a disturbing case and the current system is flawed."

From 2006 to 2011, police in predominantly black Birmingham public schools used chemical spray in 110 incidents in which about 300 students were sprayed, the organization said, adding that more than 1,200 others were exposed to the spray during those incidents.

Concerns about pepper spray in schools

The use of chemical agents by school police has been a concern in other areas. Earlier this year, Virginia lawmakers voted down a plan that would have allowed unarmed school guards to carry pepper spray and stun guns, citing concerns that they may be used inappropriately against students. Last year, Boston school officials decided to deny a request by unarmed school officers to carry pepper spray.

"I think what we are hearing so far has persuaded me that pepper spray, no matter how well-developed the policy, and no matter how well-crafted the training, and no matter their good intention—might serve to drive a wedge between our students and the school police who do a great job protecting them every day," Superintendent John McDonough wrote in a statement reported in the Boston Herald.

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